Courtesy of James R. Touchstone, Esq.

  1. As part of an officer’s total observations in evaluating whether a suspect was possibly intoxicated, an officer may testify as to the significance of a defendant’s performance on an horizontal gaze nystagmus (HGN) test without separate expert testimony.

People v. Randolph, 2018 Cal. App. LEXIS 959 (5th Dist. Oct. 23, 2018)

Facts: In 2014, Eddie Randolph was arrested by two California Highway Patrol (CHP) officers under suspicion of driving under the influence (DUI) of alcohol. One officer later testified that Randolph had weaved within in his lane and the left side tires at one point crossed over the broken white lane lines. The officers observed that Randolph’s eyes were “red and watery” and his movements were “clumsy.” They heard Randolph’s slurred speech and smelled alcohol from his vehicle. Randolph admitted having one beer that evening. According to an arresting officer, Randolph displayed six of the six scientifically validated clues for intoxication. Randolph did not perform well on several field sobriety tests to measure his balance, coordination, concentration and divided attention, including the Romberg balance test, the walk-and-turn test, and the finger-to-nose test. The officers also administered horizontal gaze nystagmus[1] (HGN) testing.

Both officers had undergone the standard CHP academy training. They were both experienced patrol officers and each had conducted thousands of DUI investigations. Both had training and experience using field sobriety tests, including HGN tests, on drivers who were suspected to be under the influence of alcohol. However, neither officer had any formal scientific or medical training.

Later that year, the Fresno County District Attorney’s Office filed a criminal complaint charging Randolph with one count of misdemeanor DUI in violation of Vehicle Code section 23152, subdivision (a). In July 2015, the case was assigned for trial. In a hearing before a jury was empaneled, the trial court expressed concern that, without an expert witness, the prosecution would be unable to prove the required elements beyond a reasonable doubt based solely on the arresting officers’ testimony. Specifically, if they were to testify about their conclusions derived from administering HGN testing, the trial court said that it would consider the arresting officers as non-expert “lay witness[es]” as it pertained to such conclusions.

The prosecutor still tried to qualify the two arresting officers as experts on alcohol at the hearing. The trial court refused to recognize the officers as experts. The trial court said that, under People v. Williams,[2] expert testimony was required “to validate the science of this HGN test to establish that there is some substantial correlation between performance on that and the other field sobriety tests and one’s level of alcohol.” Lacking this testimony, the court found the evidence was insufficient as a matter of law to sustain a DUI conviction and dismissed the case “in the interest of justice.”

The Fresno County Superior Court, Appellate Division, affirmed in a split decision. That court certified for review the question of whether an arresting police officer can testify as to the significance of a defendant’s performance on an HGN test in intoxicated driving cases, or whether the prosecution needs to provide separate expert testimony on the issue.

Held: The California Fifth District Court of Appeal held that an officer may testify as to the significance of a defendant’s performance on an HGN test without separate expert testimony. In reaching its conclusion, the Court found the trial court failed to apply People v. Joehnk[3] and relied incorrectly on Williams. The Court of Appeal determined that Joehnk superseded Williams.

The Fifth District explained that in People v. Leahy,[4] the California Supreme Court said: “Once it has been shown that HGN testing is generally accepted in the scientific community, no reason exists why police officers should be deemed unqualified to administer and report the results of those tests. Thus, in future cases… the prosecution will not be required to submit expert testimony to confirm a police officer’s evaluation of an HGN test.” The following year, Joehnk held that HGN testing was accepted by a typical cross-section of the relevant, qualified scientific community, and was “a useful tool when combined with other tests and observations in reaching an opinion whether a defendant was intoxicated.” Joehnk thus held that the prosecution was thereafter not required to submit expert testimony to confirm a police officer’s evaluation of that test, though “nothing would prevent the defendant from challenging that evaluation with expert testimony of his own.” The Fifth District found that Joehnk and Leahy taken together established that an officer, with adequate training and experience in performing the nystagmus test and without any additional expert testimony, could testify as to the significance of a defendant’s performance on an HGN test as one basis for an officer’s opinion concerning intoxication. The Court of Appeal thus found the trial court had abused its discretion in its dismissal of the case based on its misunderstanding of applicable law.

  1. Defendant’s unwarned statements to police after being effectively freed from custody should have been suppressed under Miranda because his custodial status was renewed through another detective’s conduct suggesting that defendant could not leave until data extracted from defendant’s cell phone; subsequent post­-warning statements were admissible because statements were voluntary and there was no plan to bypass Miranda.

People v. Delgado, 27 Cal. App. 5th 1092 (3rd Dist. 2018)

Facts: In April 2014, 16-year-old Ezekiel Isaiah Delgado shot and killed two people during a drug transaction. In the course of an investigation, two detectives arrested Delgado at a residence of one of Delgado’s associates after Delgado told them he believed he had an outstanding arrest warrant. The two detectives transported Delgado in handcuffs to the station (where he confirmed to the officers that he had an outstanding warrant), took his belongings including his cell phone, and left him shackled to the floor in an interrogation room for almost an hour and a half.

Detective Brian Meux then entered the room. Surprised at finding Delgado shackled to the floor, Meux immediately unshackled Delgado, told him he was not under arrest and was free to leave, and a ride would be arranged for him. Meux later testified that at that point he thought Delgado was a witness, not a suspect. Delgado answered some questions, but made no inculpatory statements. Detective Meux then left Delgado in the room to try to find the person Meux at that point thought was the prime suspect in the shooting. Meux suggested that Detective Jason Lonteen question Delgado. Meux testified that at some point before Lonteen interviewed Delgado, Meux had heard from another officer, and thought that Lonteen had heard too, that Delgado did not in fact have a warrant.

After Meux left him in the interrogation room, Delgado used the restroom and then was returned to the interrogation room. About half an hour after Detective Meux had left Delgado in the interrogation room, Detective Lonteen entered the room, identified himself, and immediately thereafter demanded that Delgado unlock his cell phone so its contents could be retrieved. Although Detective Lonteen also initially told Delgado he was not under arrest, when Delgado asked how long he would be there, Lonteen indicated the answer depended on completion of the data retrieval process. According to the video and transcript, the following interaction occurred soon after Lonteen demanded the cell phone passcode:

“[Defendant:] And, ah, how long am I gonna be here?

“[Lonteen:] We’re trying to figure that out right now … .

“[Defendant:] Because … the other man [i.e., Detective Meux] told me that I’m not under arrest or anything so.

“[Lonteen:] Okay, yeah. That’s true.

“[Defendant:] I just—that—that’s why I just want to know how long am I gonna be here.

“[Lonteen:] We’re gonna try to make it not too much longer. I’m gonna dump this [cell phone] off. I’m gonna have it—I’ll be right back to talk to you and just ask you a few more questions, okay?

“[Defendant:] All right.

Lonteen then questioned Delgado at length. When Delgado eventually admitted that he had shot the victims, an observing detective who had been watching through a one-way mirror told Lonteen via text message that it was time to read Delgado his Miranda[5] warnings. Lonteen did so, and Delgado said he understood them. Lonteen then invited Delgado to repeat what he said. Delgado repeated and elaborated on his admissions, spontaneously moving chairs and providing sound effects to reenact the shootings.

The trial court found Delgado was in custody at first, was freed from custody by Detective Meux, but was not back into custody until he admitted to Detective Lonteen that he had shot the victims. The court found Delgado’s statements, including those after the Miranda warnings, were voluntary, and not the product of a deliberate plan to evade Miranda. Delgado’s motion to suppress was denied.

A jury convicted Delgado on two counts of first degree murder and one count of discharging a firearm at an occupied vehicle, and found true a multiple-murder special circumstance and found that Delgado personally used a firearm, causing death. (Pen. Code, sections 187, subd. (a), 190.2, subd. (a)(3), 246, 12022.53, subd. (a).) The trial court sentenced him to prison for a total unstayed term of 100 years to life. Delgado appealed.

Held: The California Third District Court of Appeal began by addressing Delgado’s claim that his arrest and detention were unlawful, and consequently tainted the inculpatory statements later elicited. The Court found the officers had probable cause to arrest and detain Delgado because Delgado was known to be on probation and, based on a belief in Delgado’s own and repeated statements, they reasonably believed Delgado had an outstanding arrest warrant, and had not yet learned otherwise. The Court also rejected Delgado’s claim that it took too long to discover that he was wrong about having an outstanding warrant. The Court explained that it could not say the 84 minutes between when Delgado was detained and when Meux effectively freed him was too long as a matter of law for the officers to discover there was no warrant. The Court found no evidence in the record showing that officers failed to “diligently pursue[] a means of investigation reasonably designed to confirm or dispel their suspicions quickly.”[6]

The Third Circuit next addressed Delgado’s contention that all of his statement should have been suppressed for Miranda rules violations because he was in custody from the beginning. The Court explained “Miranda applies only to custodial interrogations, and whether a person is in custody hinges on whether a reasonable person in her or his shoes would feel free to leave. (See Howes v. Fields (2012) 565 U.S. 499, 508–509 []; People v. Aguilera (1996) 51 Cal.App.4th 1151, 1161–1162 [].) We take the juvenile’s age into consideration when determining whether a reasonable person would feel free to leave under the same circumstances. (See In re I.F. (2018) 20 Cal.App.5th 735, 760[].)”

The Court found that Detective Meux freed Delgado from custody. However, Detective Lonteen renewed custody when, after Delgado asked when he could leave, Lonteen indicated Delgado could not leave until his cell phone data was retrieved, effectively denying Delgado’s request. The Court noted that cell phones often contained highly private information, yet Lonteen demanded access. Considering that Delgado was a juvenile and had been arrested and shackled to an interrogation room floor for nearly an hour and a half alone, the Court found there were “lingering indicia of custody” that must be assessed in the reasonable-person calculus to answer the custody question as of the time Lonteen spoke to defendant, despite Meux’s effective release of Delgado from custody earlier. In this context, no reasonable person would have felt free to leave at the time Detective Lonteen said Delgado would have to wait for the contents of his phone to be extracted. Thus, the Court found that Lonteen should not have questioned Delgado without Mirandizing him, and his unwarned statements should have been suppressed.

However, the Court did not agree with Delgado that all of his statements should have been suppressed. Under Oregon v. Elstad,[7] “[t]hough Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.” The Court of Appeal explained that Missouri v. Seibert[8] and other precedent dictated that without a deliberate policy or practice to evade Miranda by officials, a subsequent voluntary warned confession is admissible notwithstanding a prior unwarned confession.

Here, the Court of Appeal found no deliberate intent and plan to circumvent Miranda. Noting the trial court’s finding that the warned admissions “flowed from missteps and miscommunication,” the Court of Appeal agreed there was not only no plan to evade the Miranda rule, but “little or no method at all.” The Court’s review of the interrogation video showed nothing indicating police coercion. Delgado was expansive and demonstrative in repeating and expanding on his statements. Moreover, he did not make a phone call when told he could, and said explicitly that he understood each of the Miranda rights as described by Lonteen before these statements. Thus, because Delgado’s statements were voluntary and there was no plan to bypass Miranda, the Court concluded the warned statements were admissible.

Finally, the Court determined that the error violating Miranda in admitting the unwarned statements was rendered harmless beyond a reasonable doubt and not prejudicial because the subsequent warned confession fully encompassed the unwarned statements and were more detailed than the unwarned confession.

  1. Officer entitled to qualified immunity where it was not clearly established that officer’s warrantless ruse-entry, in the context of civil litigation related to a determination of benefits eligibility, constituted ‘unreasonable search.’

Whalen v. McMullen, 2018 U.S. App. LEXIS 30686 (9th Cir. Oct. 30, 2018)

Facts: In 2011, Kathleen Whalen applied for social security benefits for a neurological disorder that causes tremors. Finding disparities between her medical records and her purported functional impairments, the Washington Disability Determination Services division (“DDS”) of the Washington Department of Social and Health Services referred Whalen’s application to the Cooperative Disability Investigations Unit (“CDIU”), a joint task force that investigates potential social security fraud. In October 2012, CDIU assigned Whalen’s case as a civil investigation to John McMullen, a Washington State Patrol Detective then detailed to CDIU.

McMullen visited Whalen at her home to investigate her for potential fraud. He used a ruse he had used before to gain Whalen’s cooperation; he identified himself as a law enforcement officer and asked Whalen for assistance in investigating a fictitious identity theft ring. McMullen used this ruse to engage with, question, and observe Whalen and her movements. McMullen had two hidden cameras secretly recording their interaction, initially outside of McMullen’s house. When Whalen suggested they go inside so she could check her cell phone for information she thought would be helpful in the fictitious identity theft investigation, McMullen went inside. He continued to observe and record Whalen in her home. McMullen knew beforehand that CDIU had questioned Whalen’s use of a doctor-prescribed electric wheelchair and her home’s accessibility for its use. McMullen would later report that inside Whalen’s home he saw a seemingly infrequently-used wheelchair “being used as a blanket holder.” McMullen later said he did not think a warrant was needed to enter her home because he did not search Whalen or her home or intend to do so, but only wished to speak with and observe her. Inside, he never left Whalen’s presence nor looked through her things. The entire encounter lasted about an hour.

CDIU sent a report of McMullen’s investigation to DDS which focused on Whalen’s physical behavior and her home, reporting that she was more active than she had alleged in her application. No criminal charges were ever lodged against Whalen, but the video footage McMullen surreptitiously recorded was used at her social security hearing. DDS denied Whalen’s benefits in part, but decided she did not commit fraud. Whalen was never prosecuted criminally, nor faced any administrative or civil action. When she appealed her denial of benefits, she learned of McMullen’s ruse and the surveillance recordings. Whalen filed a 42 U.S.C. section 1983 action against McMullen. The District Court granted McMullen’s motion for summary judgment based on qualified immunity. Whalen appealed.

Held: Whalen alleged on appeal that McMullen’s entry into her home without a warrant and under false pretenses violated her Fourth Amendment right to be free from unreasonable searches and seizures. The Ninth Circuit Court of Appeals held that McMullen violated Whalen’s constitutional rights, but also held that McMullen was entitled to qualified immunity because the right was not clearly established.

The Court explained the legal background applicable to the case. The Fourth Amendment, made applicable to the states through the Due Process Clause of the Fourteenth Amendment, established that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Noting that warrantless home searches are generally unreasonable,[9] the Court added that the home is “the most constitutionally protected place on earth.”[10] Qualified immunity, however, protects “all [public officials] but the plainly incompetent or those who knowingly violate the law.”[11] Qualified immunity is analyzed by determining “whether: (1) the facts adduced constitute the violation of a constitutional right; and (2) the constitutional right was clearly established at the time of the alleged violation.”[12] If both conditions are met, the public official is not entitled to qualified immunity.

In assessing whether a constitutional right was violated, the Court explained that “‘when the government “physically occupie[s] private property for the purpose of obtaining information,” a Fourth Amendment search occurs…’” (Lyall v. City of L.A., 807 F.3d 1178, 1186 (9th Cir. 2015) quoting United States v. Jones, 565 U.S. 400, 404 (2012)). Under Florida v. Jardines,[13] when an investigation involves a physical intrusion into a constitutionally protected area (like Whalen’s residence), the only remaining factor in assessing whether a Fourth Amendment “search” occurred is whether the investigation was “unlicensed” or without consent. Addressing consent in this context, the Court of Appeals explained that, under United States v. Bosse,[14] courts distinguish between undercover investigation entries and those entries based upon a ruse. An undercover entry by itself does not negate consent,[15] but the “ruse entry when the suspect is informed that the person seeking entry is a government agent but is misinformed as to the purpose for which the agent seeks entry cannot be justified by consent.”[16]

The Ninth Circuit found that here McMullen clearly employed a ruse which resulted in his entry into Whalen’s house; he identified himself to her as a government agent, but misrepresented his purpose[17] when he said he was investigating an identity theft ring, instead of investigating Whalen for fraud. The Court found that “Whalen’s consent to McMullen’s entry into her home is vitiated by his deception.” The Court found that two cases McMullen cited[18] for support did not support his CDIU ruse visits because, unlike here, there was no physical intrusion in those cases without the homeowner’s consent, and the visits in those cases were a condition of benefit eligibility. Unlike the subject residents in McMullen’s cited cases, Whalen was given no notice that a home visit would be conducted in connection with her benefits claim, because a home visit was not a condition of receiving benefits. She had no opportunity to consent to or refuse the visit. Moreover, McMullen videotaped his entire visit, and secured evidence that he saw inside through an uncontested, warrantless search. The Court found that by observing and videotaping Whalen inside her home without her consent, McMullen conducted a “search” within the meaning of the Fourth Amendment.

The Court next addressed whether the search was reasonable, observing that “[i]t is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.”[19] The Court acknowledged that CDIU investigations furthered the important legitimate governmental interest in preventing benefits fraud. However, the Court explained that the most important factor weighing against the search here was that there was neither notice nor consent to CDIU searches. Because CDIU only investigated those benefits claimants suspected of fraud, as opposed to all claimants, a warrant requirement in those certain situations did not seem particularly burdensome, especially when weighed against the “significant privacy and property interests implicated by a search of one’s home.” The Court additionally found that the “special needs” exception[20] to a warrant requirement did not apply because McMullen’s search here served general law enforcement purposes and not a “special need.” Accordingly, the Ninth Circuit concluded that McMullen’s entry into Whalen’s home without consent or a warrant in the course of a CDIU civil fraud investigation related to Whalen’s benefits claim was an unreasonable search under the Fourth Amendment.

The Court of Appeals had thus established the first element of the qualified immunity test, the violation of a constitutional right. The Court next considered whether Whalen’s right to be free from a search in this context was “clearly established.” The Court observed that “‘[t]he dispositive inquiry is “whether it would be clear to a reasonable [official] that his conduct was unlawful in the situation he confronted.”‘ CarePartners, LLC v. Lashway, 545 F.3d 867, 883 (9th Cir. 2008).” Regarding context, the Court noted that McMullen knew he was conducting a civil investigation, not a criminal one, and that it was related to benefits eligibility. Moreover, McMullen did not initially try to enter Whalen’s residence but instead tried to talk to her outside in front. The Court also observed that Whalen’s challenge on appeal was limited to McMullen’s conduct once he entered the house. The Ninth Circuit agreed with the District Court that there was no authority requiring McMullen to retreat from Whalen’s home as the conversation moved inside, nor was there authority “clearly proscribing McMullen’s conduct in this situation.” The Court found that it would not have been clear to a reasonable officer that such conduct, in the context of a civil investigation related to a benefits eligibility determination, was unlawful. The Court thus concluded that the law was not “clearly established” in this context and that McMullen was entitled to qualified immunity from Whalen’s suit.

  1. When DUI suspect is given the choice between a blood test and a breath test, and elects blood test, a search warrant is not required to administer the blood draw under the search-incident-to-arrest exception.

People v. Gutierrez, 27 Cal. App. 5th 1155 (1st Dist. 2018)

Facts: In August 2015, Concord Police Officer Justin Wilson found Elio Gutierrez asleep in a parked red truck after a report of a red truck “doing a burn-out” in a parking lot. Gutierrez did not produce a state driver’s license in response to Wilson’s request. Wilson smelled alcohol in Gutierrez’s breath, and noticed Gutierrez’s watery eyes and slurred speech. Gutierrez admitted to drinking several beers. Wilson administered field sobriety tests with the assistance of a Spanish-speaking police officer including a preliminary alcohol screening test. After concluding that Gutierrez had been driving under the influence of alcohol, Wilson arrested him.

With the assistance of the Spanish-speaking officer, Wilson told Gutierrez that the law required him to submit to a blood or breath test. Wilson then transported Gutierrez to jail, where Gutierrez chose the blood test. Gutierrez did not resist the phlebotomist’s blood draw. Neither Wilson nor the Spanish-speaking officer ever informed Gutierrez that if he refused both tests, he could face penalties under California’s implied consent laws. A search warrant was never sought nor served.

Gutierrez was charged with three misdemeanor counts: driving under the influence of an alcoholic beverage (Veh. Code, section 23152, subd. (a)), driving with a 0.08-percent BAC (blood-alcohol content) (Veh. Code, section 23152, subd. (b)), and driving a motor vehicle without a valid license (Veh. Code, section 12500, subd. (a)). Gutierrez moved to suppress all evidence obtained from the blood draw, arguing that the blood test violated the Fourth Amendment of the United States Constitution because the police did not obtain a warrant. The trial court found that the prosecution had not proven voluntary consent because it had not established that Gutierrez understood he could refuse the test and face the consequences. The judge explained: “[W]hat the officer said to Mr. Gutierrez was the functional equivalent of, [‘]We’re either going to have your breath or we’re going to have your blood. Take your choice[.’]” The court concluded the draw was an unconstitutional search and granted Gutierrez’s motion.

The prosecution appealed. A divided panel of the superior court’s appellate division reversed. The majority concluded the officer did not violate the Fourth Amendment because he allowed Gutierrez to choose between a blood draw and a breath test, though there was disagreement on whether Gutierrez had consented. The majority reasoned that under Birchfield v. North Dakota,[21] police can require a person arrested on DUI charges to submit to a breath test without a warrant or consent, so the option for a breath test meant that Gutierrez was never compelled to submit to a blood draw. Gutierrez petitioned for review.

Held: The California First District Court of Appeal held the blood draw required no warrant under the search-incident-to-arrest exception. The Court agreed with the appellate panel that the police may, without a warrant, subject a DUI suspect to a breath or blood test as long as the suspect, rather than the arresting officer, is choosing which test to administer.

The Court explained that drawing a blood sample or administering a breath test is a Fourth Amendment search (Birchfield, supra, 136 S.Ct. at p. 2173), and that “[u]nder the Fourth Amendment, a warrantless search is per se unreasonable unless the People prove that the search comes within a recognized exception to the warrant requirement.” (People v. Meza (2018) 23 Cal.App.5th 604, 609–610.) The Court added that one such exception to the warrant requirement was search incident to arrest, and the one mainly at issue in Birchfield.

The United States Supreme Court in Birchfield held that a motorist arrested on DUI charges may be compelled to blow into a machine to measure the driver’s BAC, and that the arresting officer needs no warrant because a breath test is a valid search incident to a DUI arrest. But, the Birchfield Court continued, if instead the officer directs that the suspect’s blood be drawn for the same purpose, the officer does need a warrant. Compared to the breath test, the blood test required “piercing the skin” and “Birchfield determined that because a blood test is more intrusive, it could therefore not be justified under the search-incident-to-arrest exception to the warrant requirement. (136 S.Ct. at p. 2184.)

Unlike North Dakota, where the law enforcement officer determines which test to administer, in California a DUI suspect usually is given the choice between a breath test and a blood test.[22] The First District observed that Birchfield did not address how the search-incident-to-arrest exception applies when a suspect is compelled to undergo BAC testing but given a choice as to what form that testing takes. The First District here found this element of choice was “dispositive” – if a DUI suspect freely and voluntarily chose a blood test over a breath test then the arresting officer did not need a warrant to have the suspect’s blood drawn. That the state could not compel a warrantless blood test did not mean that it could not offer one as an alternative to the breath test that it clearly could compel under Birchfield. The First District determined that the “breath-or-blood-test,” as the Court called the California test, did not intrude on an individual’s privacy any more than the breath test.

Gutierrez argued for treating the breath-or-blood test as two distinct tests governed by different categorical rules – the blood test required a warrant, and the breath test did not. However, the Court of Appeal noted that the “same sentence in Birchfield that announces the rule against warrantless blood tests grounds this rule on a comparison to the less intrusive alternative of breath testing.” The Court declared that from the perspective of the suspect subjected to a search, there was “a material difference between being compelled to take a blood test and being compelled to take either a breath or blood test, whichever the suspect prefers.” (Italics added.) Because Birchfield upheld the constitutionality of a warrantless breath test, the Court determined that Gutierrez’s preferred categorization “would have his act of choosing a blood test over that breath test trigger the requirement for a warrant. We fail to see how Fourth Amendment values are enhanced by requiring a magistrate to review a warrant application before an arresting officer can accommodate a suspect’s preference for a particular BAC test.”

The Court this concluded that because Gutierrez chose between the two types of BAC test, the search here was properly characterized as a breath-or-blood test and was justified under the search-incident-to-arrest exception to the warrant requirement. Accordingly, the Court affirmed the judgment of the appellate panel.


A criminal investigation is no longer pending — and the tolling period in POBRA’s Section 3304(d)(2)(a) ends — when a final determination is made not to prosecute all of the public safety officers implicated in the misconduct at issue.

Bacilio v. City of L.A., 2018 Cal. App. LEXIS 968 (2nd Dist. Oct. 25, 2018)

Facts: On March 30, 2011, a Los Angeles Police Department Officers Edgar Bacilio and Nestor Escobar responded to a family dispute call. They arrested the husband, and placed the child with the wife. Later in their shift, they went to the wife’s apartment to conduct a welfare check on the child. Bacilio was the officer in charge of accurately documenting the officers’ activities during their shift. In the Daily Field Activities Report (“DFAR”), Bacilio reported that the officers were at the wife’s apartment for 115 minutes. This reported time differed from those reported by the Incident Recall Sheet and Unit History Log, which also track officers’ activities during their shifts. The Incident Recall Sheet indicated that Bacilio and Escobar had been at the apartment for 12 minutes. The Unit History Log indicated the officers had stayed at the wife’s apartment for 86 minutes.

In August 2011, the wife filed a report alleging that Officer Escobar had spent 90 minutes in her apartment and that Escobar had kissed her, touched her private parts over her clothes, and propositioned her for sex. The wife later picked Escobar out of a photo spread, indicating that she was 60 to 70 percent sure he was the one who sexually assaulted her.

Criminal Investigation

LAPD’s Internal Affairs Division immediately began to investigate the wife’s claim of misconduct. Because the alleged misconduct could involve the potential crimes of sexual battery by Officer Escobar and aiding and abetting sexual battery by Bacilio, the investigation was both administrative and criminal. In June 2013, the lead internal affairs investigator presented the results of the LAPD’s Internal Affairs investigation to the Los Angeles County District Attorney’s Office. The lead investigator sought prosecution of Escobar for felony sexual battery under color of authority.

In August 2013, a deputy district attorney interviewed the wife, using the lead internal affairs investigator as a translator. According to the lead investigator’s notes of his post-interview discussion with the deputy district attorney immediately after the interview, the prosecutor said “she was not going to file against the officers” and that “it was okay … to do the admin[istrative] interviews” of Officer Bacilio and another officer “since she is not filing charges against them.” The investigator later testified about the post-interview discussion that the prosecutor had not “officially rejected” the case for prosecution; that she had said “she most likely was not going to file … against the officers” but “was still actually working on the case”; and that it was okay to interview Bacilio and the other officer because they “were not” “criminally involved,” such that interviewing them “would not interfere with [the prosecutor’s] case.”

In October 2013, the district attorney’s office sent Internal Affairs a Charge Evaluation Worksheet (“Worksheet”) officially declining to file charges against Escobar, Bacilio, and the other officer due to insufficient evidence. The Worksheet was signed by the prosecutor as well as a “reviewing deputy.”

Administrative Discipline

In September 2014, the LAPD gave notice to Officer Bacilio that Internal Affairs was seeking an official reprimand against him based on the underlying incident. In November 2014, the LAPD brought administrative charges against Bacilio alleging two counts of misconduct. The LAPD ultimately sustained a charge for “fail[ing] to maintain an accurate daily field activities report (DFAR)” during his March 30, 2011 shift. The other charge was not sustained.

Officer Bacilio appealed the LAPD’s ruling to a hearing officer. In a written ruling thereafter, the hearing officer found that the LAPD had initiated administrative disciplinary proceedings against Bacilio in a timely manner under the Public Safety Officers Procedural Bill of Rights Act (“POBRA”)[23] based on the tolling of POBRA’s one-year statute of limitations until October 2013 when the District Attorney’s Office sent the Worksheet rejecting Bacilio’s criminal case. On the merits, the hearing officer sustained the DFAR reporting charge. LAPD’s Chief of Police agreed with the hearing officer’s conclusion on this charge.

Officer Bacilio filed a petition for a writ of administrative mandamus against the City of Los Angeles (the “City”) and the Chief of Police seeking declaratory and injunctive relief vacating all adverse disciplinary findings. After a hearing, the trial court denied the petition as to the DFAR reporting charge, concluding that the LAPD’s administrative proceedings against Bacilio were timely under POBRA based on the October 2013 date as the end of the statutory tolling period. The court noted “[t]here are good policy reasons” to continue tolling until “a formal notice from the DA” declining prosecution—chiefly, that “informal discussions could be misinterpreted.” On the merits, the court found that the weight of the evidence supported the police chief’s finding as to the charge for failing to maintain an accurate DFAR. Officer Bacilio appealed.

Held: The California Second District Court of Appeal explained in its review that POBRA fosters stable public safety employer-employee relations by codifying a list of basic rights for public safety employees, including the right to speedy investigation if accused of misconduct. POBRA requires public agencies investigating misconduct by a public safety officer to complete their investigation and notify the officer of any proposed discipline within one year of discovering the misconduct. (Government Code section 3304(d)(1).) This one-year limitations period “ensure[s] that an officer will not be faced with the uncertainty of a lingering investigation.” (Mays v. City of Los Angeles (2008) 43 Cal.4th 313, 322.) If the possible misconduct “is also the subject of a criminal investigation or criminal prosecution,” the one-year period is tolled while the “criminal investigation or criminal prosecution is pending.” (Section 3304, subd. (d)(2)(A)) While a criminal investigation is pending, tolling is mandatory for its “entire duration.”[24] The reason for this tolling is that criminal investigations are more complex, nuanced, and time-consuming than purely administrative investigations, and therefore should not be expected to be completed as quickly or simply as purely administrative investigations.

The Court determined that the essential question on appeal was: When is a criminal investigation no longer “pending,” ending the tolling period for a criminal investigation? Officer Bacilio argued on appeal that the deputy district attorney’s comments to the lead internal affairs investigator immediately after their August 2013 interview of the wife marked the end of the criminal investigation. The deputy district attorney had said to the investigator that “she was not going to file against the officers,” and that it was “okay … to do the admin[istrative] interview” of the officers. Bacilio argued that her comments constituted “an official rejection” of criminal prosecution, and that the tolling period for the statute of limitations ended then. Officer Bacilio claimed that LAPD’s notice to him of potential discipline, given in September 2014, was accordingly not timely per POBRA’s one-year limit.

Since POBRA did not explicitly specify or define when an investigation was no longer “pending,” the Second District looked to “other aids, such as the statute’s purpose, legislative history, and public policy.”[25]  The Court concluded that a criminal investigation was no longer pending—and Section 3304(d)(2)(A)’s tolling period ended—when a final determination was made not to prosecute all of the public safety officers implicated in the misconduct at issue.

The Court then applied the final determination standard to Bacilio’s case here. The Court found, looking at the totality of the circumstances, that substantial evidence supported the finding that the City carried its burden of showing that the District Attorney’s Office did not make its final determination regarding prosecution until it issued its October 2013 Worksheet declining to prosecute. The Court noted the lead internal affairs investigator testified that the deputy district attorney said in August 2013 she was “still actually working on the case.” The fact that the District Attorney’s Office prepared the October 2013 Worksheet officially declining to file charges and sent it out suggested the notion that the August 2013 commentary was an interim, not final decision. So too, did the fact that the Worksheet was signed not just by the prosecutor but by a reviewing deputy – an additional step beyond the deputy district attorney’s comments in August 2013. The Second District found the later Worksheet functioned as the equivalent of the formal memo in Richardson, in which the court concluded that a criminal investigation was still pending (and thus still tolled under POBRA) until the prosecuting entity wrote a formal memorandum declining charges, even though earlier memoranda to the file indicated that no investigation was ongoing. Consequently, the investigation and discipline of Bacilio was timely. The Court accordingly affirmed.

For a more detailed discussion of this case, please see Client Alert Vol. 33, No. 37, available at www.jones-mayer.com.


Petitioner entitled to return of seized marijuana property under California law.

Smith v. Superior Court of San Francisco, 2018 Cal. App. LEXIS 931 (San Francisco County Superior Court – Appellate Division, Aug. 16, 2018)

Facts: On August 16, 2018 in the case of Smith v. Superior Court of San Francisco, 2018 Cal. App. LEXIS 931 (San Francisco County Superior Court – Appellate Division, Aug. 16, 2018), the Appellate Division of the San Francisco County Superior Court granted the petition for writ of mandate seeking return of a lawful amount of marijuana seized during arrest. The Court ruled that there was no conflict between relevant federal and State law in the matter.

In January 2018, a San Francisco Police Department police officer went to a downtown address in response to a report of a man making threats with a possible gun. The officer ultimately arrested Robert T. Smith, the petitioner here. The officer searched Smith’s backpack, seizing 21.8 grams of marijuana and $574.21 in cash. Smith was charged by misdemeanor complaint with two counts of criminal threats (Pen. Code, section 422) and one count of disturbing the peace (Pen. Code, section 415, subd. (3)). These charges subsequently were dismissed under Penal Code section 1385 in March 2018.

In April 2018, the trial court heard and denied Smith’s non-statutory motion to return the 21.8 grams of marijuana. Smith filed a petition for writ of mandate, seeking review for the return of his marijuana. The Appellate Division of the San Francisco County Superior Court (the “Court”) ordered the SFPD to show cause why it should not be ordered to return Smith’s property under City of Garden Grove v. Superior Court [26] (and any other applicable law).

Held: The Court confirmed that the petition for writ of mandate was the proper avenue of redress for denial of a defendant’s non-statutory motion to return seized property.[27] The Court then reminded that no state can “deprive any person of life, liberty, or property, without due process of law,” under the Fourteenth Amendment to the United States Constitution. Therefore, “‘[c]ontinued official retention of legal property with no further criminal action pending violates the owner’s due process rights.’ (Garden Grove, supra, 157 Cal.App.4th at p. 387.)”

Proposition 64, approved in November 2016, drastically reduced criminal punishments for some marijuana offenses. Proposition 64 added Health and Safety Code section 11362.1, which legalized the possession of 28.5 grams or less of cannabis for persons at least 21 year old.

Under Health & Safety Code, section 11473.5: “All seizures of controlled substances … which are in possession of any city, county, or state official as found property, or as the result of a case in which no trial was had or which has been disposed of by way of dismissal or otherwise than by way of conviction, shall be destroyed by order of the court, unless the court finds that the controlled substances, instruments, or paraphernalia were lawfully possessed by the defendant.” The Court explained that “lawfully possessed” per this section meant lawfully possessed pursuant to California law, and the “Garden Grove court found that principles of due process and fundamental fairness dictate the return of lawfully possessed marijuana.” (Garden Grove, supra, 157 Cal.App.4th at p. 388–89.) However, under the federal Controlled Substances Act (21 U.S.C. section 801 et. seq.; “CSA”), “simple possession” of marijuana is a misdemeanor,[28] and it is unlawful for any person to knowingly and intentionally distribute marijuana. (21 U.S.C. section 841(a)(1).)

The Court explained that the Supremacy Clause of the United States Constitution grants Congress the power to preempt state law,[29] but the traditional police powers of the States are not superseded by a federal enactment unless that is the clear and manifest purpose of Congress. Federal law preempts state law when: (1) Congress explicitly proclaims that its enactment preempts state law; (2) the enactment regulates conduct in a field that Congress intended the federal government to occupy exclusively; or (3) the state law conflicts with federal law, making it impossible for a private party to comply with both state and federal requirements.[30]

21 U.S.C. section 903 of the CSA simplifies the Supremacy Clause’s preemption test as applied here. The section provides: “No provision of [the CSA] shall be construed as indicating an intent on the part of Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision … and that State law so that the two cannot consistently stand together.” Thus, the CSA explicitly proclaims that its provisions do not preempt State law and are not intended to exclusively occupy any field to the exclusion of State law. The Court explained that the CSA would therefore preempt State law “only to the extent of an actual conflict, making it impossible for a private party to comply with both state and federal requirements.”

The Court observed that California law enforcement officers are required to return “lawfully possessed” marijuana to its owner, per State law. The CSA prohibits the distribution of marijuana, whether or not a state permits the recreational use of marijuana. Would a police officer returning marijuana to its owner under California law be “distributing” marijuana under the CSA? The Garden Grove court found that 21 U.S.C. section 841(a)(1) did not apply to people who “regularly handle controlled substances in the course of their professional duties.”[31]  Here, SFPD would be acting under a court order in returning Smith’s 21.8 grams of marijuana, clearly in a professional capacity. Consequently, the Court held there was no “positive conflict” between the CSA and California law such that compliance was impossible here.

21 U.S.C. section 885(d) of the CSA declares that “no civil or criminal liability shall be imposed by virtue of this subchapter … upon any duly authorized officer of any State … who shall be lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances.” Under U.S. v. Cortés-Cabán,[32] Section 885(d) protects accepted law enforcement tactics “in which officers handle and transfer drugs.” The Court concluded that “any law or municipal ordinance relating to controlled substances” necessarily included the California statutory scheme for the return of “lawfully possessed” marijuana to its owner, “further eliminat[ing] any positive conflict between California’s return law and the CSA’s prohibition on distribution of marijuana.” The Court thus held that SFPD was immune from federal prosecution under the CSA when complying with California’s return provisions.[33]

The Court, having found no positive conflict between the CSA and the pertinent California law at issue here, noted that petitioner Smith was over 21 and the amount of marijuana he sought to have returned was less than 28.6 grams. Thus he had ““lawfully possessed” the marijuana at the time of seizure. The Court had concluded that there was no positive conflict between the CSA and California’s marijuana return laws and that the SFPD was immune from federal prosecution under the CSA when complying with California’s return laws. Accordingly, the Court granted Smith’s petition for writ of mandate, and ordered the lower court to vacate its previous denial for return of property, and enter a new order in compliance with the Court’s decision.

For a more detailed discussion of this case, please see Client Alert Vol. 33, No. 36, available at www.jones-mayer.com.


Carrying a loaded firearm in a public place was a crime of moral turpitude because the crime involved a ‘general readiness to do evil,” thus the evidence was admissible to impeach defendant.

People v. Bedolla, 2018 Cal. App. LEXIS 951 (2nd Dist. Oct. 22, 2018)

Facts: In January 2017, the Santa Clara County District Attorney charged Francisco Bedolla by information with felony attempted first degree burglary, along with other charges, for an incident on Halloween in October 2014. According to evidence from the later trial, a 14-year old minor inside of the San Jose house at issue saw a man at the door and another by the sidewalk, apparently a lookout. The child heard repeated loud knocking and then more than 30 kicks at the front door, and thought someone was trying to break in. The minor called 911. Soon thereafter, City of San Jose police officers detained Bedolla and an associate after they ran from the house’s driveway. The officers brought the two men to the front of the house for an in-field identification. The child, from upstairs in the house, identified Bedolla and his associate as the individuals he has seen outside his house. Officers found visible damage to the closed front door, consistent with other burglaries with front door damage. The damage matched the shoe of Bedolla’s associate.

Before trial, the prosecutor had moved in limine to impeach Bedolla with a juvenile adjudication from 2013 for carrying a loaded firearm while in a public place (Penal Code section 25850(a)[34]). The trial court expressed the view that whether the firearm offense qualified as a crime of moral turpitude was an open question, and found some risk in prejudicing the jury given that the attempted burglary charge did not involve a weapon. As a form of risk mitigation, the court and the parties eventually agreed to accept a sanitized reference to the 2013 offense as a “nontheft-related crime of moral turpitude.”

At trial, Bedolla repeatedly denied lying to avoid responsibility for prior crimes, but admitted to committing a felony non-theft-related crime of moral turpitude. Ultimately, the jury convicted Bedolla of attempted first degree burglary. The trial court sentenced Bedolla to time served and placed Bedolla on three years of formal probation and imposed fines and fees. Bedolla appealed.

Held: The California Sixth District Court of Appeal held that Bedolla’s prior juvenile adjudication for carrying a loaded firearm while in a public place involved moral turpitude and was properly used to impeach him.

Setting the legal background for its decision, the Court explained that “‘[p]ast criminal conduct involving moral turpitude that has some logical bearing on the veracity of a witness in a criminal proceeding is admissible to impeach, subject to the court’s discretion under Evidence Code section 352.’” (People v. Harris (2005) 37 Cal.4th 310, 337.) “This includes prior misconduct that was the subject of a juvenile adjudication.” (People v. Lee (1994) 28 Cal.App.4th 1724, 1740.)”

The Court, citing People v. Aguilar,[35] explained that to determine whether a particular conviction involved moral turpitude, “courts follow the ‘least adjudicated elements’ test set forth in [People v. Castro (1985) 38 Cal.3d 301, 317…]” According to this test, from the elements of the offense alone (i.e., without regard to the facts of the particular violation), crimes involve moral turpitude when they reveal dishonesty, a “general readiness to do evil,”[36] or “moral laxity of some kind.”[37]

Aguilar addressed the admissibility of impeachment evidence based on a prior felony conviction for carrying a concealed weapon in a vehicle. The court in Aguilar found the crime to involve moral turpitude because firearms posed a “recognized risk of violence” with an “imminent threat to public safety,” whether or not the defendant had intent to injure or to arm himself. The Sixth District stated here that while carrying a loaded firearm (concealed or not) in public did not imply dishonesty per se for moral turpitude purposes, “moral turpitude does not depend on dishonesty being an element of the felony[38]… [w]hat matters is the fact that carrying a loaded firearm in a public place enables violence to erupt, possibly without warning, and thus suggests a “‘“‘general readiness to do evil,’”‘ … or ‘moral laxity of some kind’ … .”[39] The Sixth District thus concluded that carrying a loaded firearm in a public place as prohibited by Section 25850(a) demonstrated a “general readiness to do evil” and was thus a crime of moral turpitude.

Recapping, the Court said that the state Legislature had determined that carrying a loaded firearm in public posed a grave risk of harm, making Bedolla’s prior juvenile adjudication a crime of moral turpitude. This in turn, under Castro, was sufficient to make that crime relevant to his credibility. Accordingly, the Court of Appeal held that a prior violation of Penal Code section 25850(a) was admissible to impeach. The Court further concluded the trial court did not abuse its discretion in admitting the sanitized impeachment evidence, finding the trial court properly assessed the relevant factors and the admission was not unreasonable, much less arbitrary or capricious. Had the admission been deemed so, any resulting error would have been “minimal or nonexistent.” Accordingly, the Sixth District affirmed.


In complying with public records requests, agencies may under Government Code section 6253.9(b)(2) recover costs associated with extracting exempt material from video recording for the purposes of production, including the costs of special computer services.

National Lawyers Guild v. City of Hayward, 27 Cal. App. 5th 937 (1st Dist. Sep. 28, 2018)

Facts: The National Lawyers Guild, San Francisco Bay Area Chapter (“Guild”), is a not-for-profit organization that wishes to promote justice in the administration of law, civil rights and racial equality. In January 2015, the Guild served public records requests (paper and electronic) on the City of Hayward relating to a December 2014 public demonstration in Berkeley at which the Hayward Police Department provided security.

The City provided the Guild with copies of well over 200 public records, including over six hours of police body camera videos from the Berkeley demonstration. The body camera videos had been redacted to exclude material exempt from disclosure under the California Public Records Act[40] (CPRA) for privacy or security reasons. City employees spent about 170 hours identifying, compiling, reviewing and redacting exempt portions from these videos, which were among thousands of hours of police videos stored on the Internet and accessible only by certain personnel through a password-protected external website.[41] This involved painstaking and “meticulous” efforts by an employee and included the research to find and trial-and-error with a new unfamiliar software program that seemed the best tool to use for the job called Windows Movie Maker, a specialized third party software application with audio/video editing capabilities.

The City then sent an invoice to the Guild to recoup costs for the production of the resultant videos. The Guild paid under protest and received nearly four more hours of police body cam video. The Guild then requested a second set of videos. The City promptly complied, allowing the Guild to see the redacted videos free of charge. The City also offered to produce physical copies for a charge to recover some of its production charge. The Guild instead petitioned for relief by means of a refund of its payment for the initial set of requested videos, for and release of the second set of videos for only the direct costs of production. The trial court ruled in the Guild’s favor, holding that, as a matter of law, Government Code sections 6253(b) and 6253.9(a)(2) do not allow the City to charge a CPRA requester for costs incurred in making a redacted version of an existing public record. The City appealed.

Held: The First District Court of Appeal of California considered the issue on appeal to be one of statutory construction. Was the City entitled under Government Code section 6253.9(b) to recover from the Guild certain costs it incurred to edit and redact exempt material on otherwise disclosable police department body camera videos prior to the electronic public records’ production?

The Court explained that under Cal. Const., art. I, section 3(b) (1), “The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.” This right includes peace officer activities,[42] and extends to both paper and electronic records[43] in the public domain. Yet privacy considerations apply, and existing privacy rights are not superseded by the constitutional grant of public access. (Cal. Const., art. I, section 3 (b)(3).) On the other hand, “that a public record may contain some confidential information does not justify withholding the entire document,”[44] so if only part of a record is exempt, the agency is required to produce the remainder, if the record is segregable. (Government Code section 6253(a).)

Here, the dispute was regarding which party had to suffer the costs in connection with the City’s production response to the Guild’s request. Under Section 6253.9(b), electronic records requests can be charged to the requester (and not borne by the producing party) when compliance with the request for an electronic record “would require data compilation, extraction, or programming to produce the record.” (Section 6253.9(b)(1)-(2).) In this situation, the agency may charge “the cost to construct a record, and the cost of programming and computer services necessary to produce a copy of the record ….” The City and the Guild disputed whether “extraction” occurred in the City employee efforts to provide redacted produced video. The Guild maintained “extraction” in this statutory context did not refer to making a redacted version of an existing public record, but referred to removing or taking out data for the purpose of constructing or generating a previously nonexistent record. The City disagreed, holding “extraction” included any act of removing or taking out material from an electronic record in anticipation of its production.

Finding the statutory language itself unclear as to the meaning of “extraction,” the First district turned to the legislative history to uncover Section 6253.9(b)’s meaning. The Court determined that (1) lawmakers were aware the cost of redacting exempt information from electronic records would in many cases exceed the cost of redacting such information from paper records, and so therefore (2) drafted Section 6253.9(b) specifically to expand the circumstances under which a public agency could be reimbursed by a CPRA requester. These broadened circumstances were to include, among other items, when the agency must incur costs to acquire and utilize special computer programming to extract exempt material from otherwise disclosable electronic public records.

Accordingly, the Court concluded based on the language of the statute, the legislative history, and policy considerations that the costs allowable under Section 6253.9 (b)(2) included the City’s expenses incurred in constructing a copy of the police body camera video recordings for disclosure purposes, including the cost of special computer services and programming (e.g., the Windows Movie Maker software) used to extract exempt material from these recordings in order to produce a copy to the Guild. The Court accordingly reversed the trial court’s decision, and remanded for cost recovery determination. 


  1. Due to the passage of Proposition 57, all nonviolent state prisoners, including “Third Strike” offenders, are eligible for parole consideration.

In re Edwards, 26 Cal. App. 5th 1181 (2nd Dist. 2018)

Facts: Originally enacted in 1994, California’s “Three Strikes” law (Pen. Code, sections 667, subds. (b)–(i), 1170.12) was designed to increase the prison terms of repeat felons by separately increasing the punishment for each new felony conviction. (People v. Williams (2004) 34 Cal.4th 397, 404.) “When a defendant is convicted of a felony, and it is pleaded and proved that he or she has committed one or more prior felonies defined as ‘violent’ or ‘serious,’ sentencing proceeds under the Three Strikes law […] If the defendant has two or more prior qualifying felonies, the prescribed term for the current (or ‘triggering’) felony conviction will be an indeterminate term of life imprisonment….”

Proposition 57 was approved by California voters in 2016. It added a provision to California’s Constitution that states: “Any person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense.” (Cal. Const., art. I, section 32, subd. (a)(1) (“Section 32(a)(1)”.) The provision defines “the full term for the primary offense” as “the longest term of imprisonment imposed by the court for any offense, excluding the imposition of an enhancement, consecutive sentence, or alternative sentence.” (Section 32(a)(1)(A).)

Proposition 57 also directed the California Department of Corrections and Rehabilitation (“CDCR”) to adopt regulations “in furtherance of [Section 32(a)]” and “certify that these regulations protect and enhance public safety.” (Cal. Const., art. I, section 32, subd. (b) (“Section 32(b)”.)

Petitioner Vicenson D. Edwards is currently serving a 53-year-to-life sentence in state prison, imposed pursuant to the “Three Strikes” law (Pen. Code, sections 667, subds. (b)–(i), 1170.12). He sustained the convictions that triggered his sentence – felon in possession of a firearm (Pen. Code, former section 12021) and evading a police officer while driving recklessly (Veh. Code, section 2800.2) – in 1998. The Second District affirmed these convictions and the sentence imposed (with modifications) on direct appeal.

Edwards filed a habeas corpus petition challenging the regulations that CDCR promulgated which made him ineligible to seek Proposition 57 relief. The Court of Appeal issued an order directing CDCR to show cause why the relief sought in the petition should not be granted. The Attorney General, on CDCR’s behalf, filed a return defending the regulations and maintaining that Edwards was ineligible for Proposition 57 relief. After CDCR promulgated final regulations, the Court solicited briefs from the parties concerning the final regulations prior to its decision.

Held: The California Second District Court of Appeal held that the passage of Proposition 57 meant that all nonviolent state prisoners, including “Third Strike” offenders, are eligible for parole consideration upon completion of the full term for their primary offense.

The Court observed that, according to the text of Proposition 57, its goals were to: protect and enhance public safety; save money by reducing wasteful spending on prisons; prevent federal courts from indiscriminately releasing prisoners; and to stop the revolving door of crime by emphasizing rehabilitation, especially for juveniles. The Court of Appeal focused on the text of Section 32(a)(1) that advanced these purposes. Under Section 32(a)(1), “Any person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense.” Under Section 32(a)(1)(A), “the full term for the primary offense means the longest term of imprisonment imposed by the court for any offense, excluding the imposition of an enhancement, consecutive sentence, or alternative sentence.”

The Court concluded from the text that it was “obvious the electorate intended to establish a new rule: All nonviolent state prisoners are eligible for parole consideration, and they are eligible when they complete the full term for their primary offense.” CDCR conceded Edwards and similarly situated prisoners were nonviolent, but argued the reference to “the full term for the primary offense” referred to a determinate sentence, rendering Edwards ineligible for relief because he was serving an indeterminate sentence and had not completed a “full term.”

The Court noted that the parties agreed that Edwards qualified as a nonviolent offender and, under section 32(a)(1), was “eligible for parole consideration after completing the full term for his … primary offense.” Edwards and CDCR also agreed (and precedent had well established) that “an indeterminate life term under the Three Strikes law … is an alternative sentence … .” (People v. Turner (2005) 134 Cal.App.4th 1591, 1597.) The parties further agreed that the “full term” of Edwards’s primary offense was “the longest term of imprisonment imposed by the court for any offense, excluding the imposition of an enhancement, consecutive sentence, or alternative sentence.” (Section 32(a)(1)(A), italics added.)

The Court concluded that the plain language analysis was straightforward, finding “no question that the voters who approved Proposition 57 intended Edwards and others serving Three Strikes indeterminate sentences to be eligible for early parole consideration; the express exclusion of alternative sentences when determining the full term is dispositive.” Citing excerpts from the Voter Information Guide at the time in support of Proposition 57, the Court concluded that there was “strong evidence the voters who approved Proposition 57 sought to provide relief to nonviolent offenders.” The Court also found that CDCR’s concession that Edwards was a nonviolent offender (for Prop. 57 purposes) “leaves us convinced that excluding him for relief is inconsistent with the voters’ intentions.” The Court added that excluding nonviolent indeterminately sentenced inmates from early parole consideration “frustrates rather than facilitates the [Proposition 57] voters’ declared intention to avoid indiscriminate inmate releases that might otherwise be required to respond to constitutional overcrowding concerns.”

Having established Edwards’ eligibility, the Court then addressed the timing of when Edwards was entitled to early parole consideration. The Court found that the language in Section 32(a)(1) that “excludes any alternative sentence from consideration is most naturally understood as a command to calculate the parole eligibility date as if the Three Strikes law alternative sentencing scheme had not existed at the time of Edwards’s sentencing.” Under Penal Code section 18, the Court determined the maximum term Edwards would face for his currently convicted crimes was three years in state prison. Edwards had already completed that term, and, the Court determined, was therefore now eligible for early parole consideration. The Court also voided certain CDCR provisions that “impermissibly circumscrib[ed]” Proposition 57 parole eligibility to inmates serving Three Strikes sentences for nonviolent offenses for being inconsistent with California Constitution, article I, section 32.

The Second District Court of Appeal granted Edwards’ petition for habeas corpus and directed CDCR to void and repeal the portion of Cal. Code Regs., tit. 15, section 3491, subd. (b)(1) at issue in the case. The Court also directed CDCR to make any further conforming changes necessary to “render the regulations adopted pursuant to California Constitution, article I, section 32(b) consistent with section 32(a) and this opinion.” Edwards was to be evaluated for early parole consideration within 60 days of the ruling’s issuance.

For a more detailed discussion of this case, please see Client Alert Vol. 33, No. 35, available at www.jones-mayer.com. 

  1. Penal Code section 243.9 applies to persons confined to any local detention facility, even when temporarily outside of the walls of the facility.

People v. Valdez, 28 Cal. App. 5th 308 (2nd Dist. 2018)

Facts: In March 2016, Raymond James Valdez was at a Los Angeles County courthouse awaiting a pretrial proceeding for a case against him. He was handcuffed, sitting right outside of the lockup, right at its door, and next to his attorney. The lockup was connected to the “very small” courtroom, separated by a hallway and two locked doors. When his court appearance was over, Valdez was told by a Los Angeles County Sheriff’s deputy to stand up and “exit the courtroom” to go through the door into the lockup. Valdez stood up, swore at the judge and the deputy, as well as the two other Sheriff’s deputies who were working as the bailiffs in the court, and then spit in the face and at the upper chest of the deputy who told him to exit—covering her face with saliva. The deputy immediately went to wash her face. As a result of Valdez’s expectoration, the deputy had to get blood tests, and suffered severe side effects from the preventative medications she had to take.

Valdez was charged with battery by gassing in violation of Penal Code section 243.9(a). At trial, the parties disputed whether the meaning of “local detention facility” within the meaning of the Section 243.9(a) applied in this case. The trial court ruled that the term “local detention facility” included “any location where a defendant in custody of the county government, although temporarily, located in the courtroom, but still housed in county jail….” The jury was read a description of a “local detention facility” as follows: “A facility used for detaining persons operated by a county government is a local detention facility.” The jury found Valdez guilty of battery by gassing and the trial court sentenced Valdez to 11 years in the state prison.

Held: On appeal, Valdez maintained the courtroom was not a “local detention facility” under Section 243.9(a).[45] Valdez conceded that the lockup in the county courthouse was a “local detention facility,” but argued the courtroom itself was not because the lockup was “detached from the courtroom by a long hallway and a series of two locking doors.” The California Second District Court of Appeal determined the issue to be one of statutory construction.

The Court explained the well-established course it would follow in assessing the meaning of the section, citing People v. Verduzco.[46] First, the Court would examine the statutory language’s “plain and commonsense meaning.” If this did not resolve the issue, the Court would consider the statute’s legislative history. If the meaning of the statue remained unclear after the initial two steps, the final step would have the Court “apply reason, practicality, and common sense” to the statute’s language, and to foster workable and reasonable results via its chosen interpretation. The Court would also consider the consequences of its choice of interpretation.

Finding the first two steps unsuccessful in resolving the issue, the Court turned to the reason and practicality step. The Court explained that Valdez was confined to the county jail while awaiting trial, brought to the courthouse by sheriff’s deputies, kept in the lockup until the court was ready to call his case, brought by bailiffs into the courtroom long enough for his pretrial matter to be heard, then returned to the lockup and eventually returned to the jail. The purpose of the battery by gassing statute is to deter individuals in custody from spitting on, or throwing feces or urine on, peace officers. The Court explained that construing the statute as Valdez suggested would defeat this purpose: “An inmate who spits on a deputy just before she brings him into the courtroom would be guilty of gassing. An inmate who spits on a deputy just after she has brought him through the door and into the courtroom—where he plainly remains detained and in custody—would not. We decline to endorse such a result.”

The Second District explained that here, Valdez, an inmate in the county jail, was transported to the courthouse for his court appearance and then returned to the county jail to await trial. Valdez was in the custody and control of the Sheriff’s Department when he left the jail until he returned. The Court determined that giving Section 243.9 its “practical, reasonable, common sense” interpretation of “local detention facility” as including the courtroom as it was situated here promoted the Legislature’s goal of protecting peace officers from battery by inmates. The Court thus held that Valdez’s actions violated Section 243.9. The Court accordingly affirmed.

  1. Former city council member’s misdemeanor conviction for obstruction of justice did not constitute a conviction for “malfeasance in office” under Cal. Const., art. VII, section 8, subd. (b); it was not a crime specifically enumerated as a disqualifying conviction.

People ex rel. City of Commerce v. Argumedo, 28 Cal. App. 5th 274 (2nd Dist. 2018)

Facts: Hugo Alexander Argumedo was a member of City of Commerce City Council who pled guilty for misdemeanor obstruction of justice in December 2010 relating to a prior public statement. In accordance with the plea agreement, the criminal court dismissed a felony perjury count. The court found a factual basis for the plea, but the facts supporting the plea were not stated on the record. Complying with the plea agreement, Argumedo immediately resigned from the City Council and did not run for nor hold any public office for his probation term of three years. He then ran again and was reelected to the City Council in March 2015.

In November 2015, the City Council sued Argumedo in quo warranto[47] to oust him from the City Council on the ground that his obstruction of justice conviction constituted “malfeasance in office” under article VII, section 8(b) of the California Constitution and so disqualified him from public office pursuant to Government Code section 1021. The trial court decided in Argumedo’s favor, finding the City failed to establish Argumedo’s misdemeanor conviction for obstruction of justice constituted a disqualifying conviction. The City appealed.

Held: The California Second District Court of Appeal explained that the right to hold public office is a valued right of citizenship and “should not be declared prohibited or curtailed except by plain provisions of law. Ambiguities are to be resolved in favor of eligibility to office.” (Carter v. Commission on Qualifications of Judicial Appointments (1939) 14 Cal.2d 179, 182.) Article VII, section 8(b) of the California Constitution provides in part: “Laws shall be made to exclude persons convicted of bribery, perjury, forgery, malfeasance in office, or other high crimes from office….” Government Code Section 1021 provides: “A person is disqualified from holding any office upon conviction of designated crimes as specified in the Constitution and laws of the State.”

The Court found misdemeanor obstruction of justice was not one of the specifically enumerated crimes disqualifying a person from holding public office. The Court explained that malfeasance in office, like the other crimes specified in Section 8(b), “evidences moral corruption and dishonesty.” The Court found, however, that an obstruction of justice conviction did not necessarily implicate moral corruption and dishonesty. The Second District observed that that the trial court did not state for the record its particular basis for the plea and Argumedo did not admit any specific facts. The Court of Appeal found that the required “in office” part of “malfeasance in office” was lacking to connect the obstruction of justice conviction to malfeasance in office as described in Section 8(b). The Court thus concluded that the record of Argumedo’s misdemeanor obstruction of justice conviction did not establish a conviction for malfeasance in office. The Second District accordingly affirmed the trial court’s judgment in favor of Argumedo in the quo warranto action.

[1] As discussed in the opinion, nystagmus is an involuntary rapid movement of the eyeball. This movement may be in a horizontal, vertical, or rotatory direction. An inability of the eyes to maintain visual fixation as they are turned from side to side (in other words, jerking or bouncing) is called “horizontal gaze nystagmus,” or HGN. Alcohol intoxication is believed by some investigators to increase the frequency and amplitude of HGN and to cause HGN to occur at a smaller angle of deviation from the forward direction.

[2] 3 Cal.App.4th 1326 (5th Dist. 1992).

[3] 35 Cal.App.4th 1488 (4th Dist. 1995).

[4] 8 Cal.4th 587 (1994).

[5] See Miranda v. Arizona, 384 U.S. 436 (1966).

[6] People v. Russell, 81 Cal.App.4th 96, 101–102 (3rd Dist. 2000).

[7] 470 U.S. 298 (1985).

[8] 542 U.S. 600 (2004).

[9] Kyllo v. United States, 533 U.S. 27, 31 (2001).

[10] United States v. Craighead, 539 F.3d 1073, 1083 (9th Cir. 2008).

[11] Malley v. Briggs, 475 U.S. 335, 341 (1986).

[12] Mitchell v. Washington, 818 F.3d 436, 443 (9th Cir. 2016).

[13] 569 U.S. 1 (2013).

[14] 898 F.2d 113, 115 (9th Cir. 1990) (per curiam).

[15] Unless the undercover agent exceeded the scope of his invitation while inside the home, the Fourth Amendment is not violated.

[16] Bosse, 898 F.2d at 115.

[17] “[A]ccess gained by a government agent, known to be such by the person with whom the agent is dealing, violates the [F]ourth [A]mendment’s bar against unreasonable searches and seizures if such entry was acquired by affirmative or deliberate misrepresentation of the nature of the government’s investigation.” SEC v. ESM Gov’t Sec. Inc., 645 F.2d 310, 316 (5th Cir. 1981).

[18] Wyman v. James, 400 U.S. 309 (1971), and Sanchez v. County of San Diego, 464 F.3d 916 (9th Cir. 2006).

[19] Payton v. New York, 445 U.S. 573, 586 (1980).

[20] The exception can apply in certain situations like drug testing in public schools, or for searches of probationers’ homes.

[21] 136 S. Ct. 2160 (2016).

[22] N.D. Cent. Code Ann. section 39-20-01, subd. 2 (2016) states that the “law enforcement officer shall determine which of the tests is to be used,” while California’s Vehicle Code, section 23612, subd. (a)(2)(A) provides that the “lawfully arrested … person has the choice of whether the test shall be of his or her blood or breath.”

[23] Government Code section 3300 et seq.

[24] Daugherty v. City and County of San Francisco, 24 Cal.App.5th 928, 958–959 (1st Dist. 2018).

[25] Coalition of Concerned Communities, Inc. v. City of Los Angeles, 34 Cal.4th 733, 737 (2004).

[26] 157 Cal.App.4th 355 (4th Dist. 2007).

[27] People v. Hopkins, 171 Cal.App.4th 305, 308 (4th Dist. 2009).

[28] 21 U.S.C. section 844(a).

[29] U.S. Const. art. 6, cl. 2.

[30] Jevne v. Superior Court, 35 Cal.4th 935, 949-950 (2005).

[31] Garden Grove, (2007) 157 Cal.App.4th at p. 390.

[32] 691 F.3d 1, 20 (1st Cir. 2012).

[33] See People v. Crouse (2017) 388 P.3d 39, 45 (dis. opn. of Gabriel, J.); see also State v. Okun (2013) 231 Ariz. 462, 466 [296 P.3d 998] [concluding that 21 U.S.C. section 885(d) immunizes law enforcement officers from federal prosecution for complying with a court order to return the defendant’s marijuana]; Garden Grove, (2007) 157 Cal.App.4th 355, 390 [same]; State v. Kama (2002) 178 Or.App. 561, 564 [39 P.3d 866] [same].

[34] “A person is guilty of carrying a loaded firearm when the person carries a loaded firearm on the person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory.”

[35] 245 Cal.App.4th 1010 (2nd Dist. 2016).

[36] People v. Gabriel, 206 Cal.App.4th 450, 456 (2nd Dist. 2012).

[37] People v. Garrett, 195 Cal.App.3d 795, 798 (2nd Dist. 1987).

[38] People v. Castro, supra, 38 Cal.3d at p. 315.

[39] Aguilar, supra, 245 Cal.App.4th at p. 1017.

[40] Gov. Code, section 6250 et seq.

[41] The Hayward Police Department generates about 1,000 hours of videos from “body-worn cameras” monthly. Individual officers upload the videos from their cameras in MP4 format for storage via a docking station at the station after their shifts end.

[42] Commission on Peace Officer Standards & Training v. Superior Court 42 Cal.4th 278, 297 (2007): “‘In order to maintain trust in its police department, the public must be kept fully informed of the activities of its peace officers.’”

[43] Public records as defined by the Legislature includes “any writing containing information relating to the conduct of the public’s business … regardless of physical form or characteristics,” and defines “writing” as “any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.” (Government Code section 6252, subds. (e), (g).)

[44] State Bd. of Equalization v. Superior Court, 10 Cal.App.4th (3rd Dist. 1992).

[45] The section provides in part: “Every person confined in any local detention facility who commits a battery by gassing upon the person of any peace officer…or employee of the local detention facility is guilty of aggravated battery and shall be punished by imprisonment in a county jail or by imprisonment in the state prison for two, three, or four years.”

[46] 210 Cal.App.4th 1406, 1414 (2nd Dist. 2012).

[47] Code of Civil Procedure section 803 provides, in pertinent part: “An action may be brought by the attorney-general, in the name of the people of this state, upon his own information, or upon a complaint of a private party, against any person who usurps, intrudes into, or unlawfully holds or exercises any public office … .”